1 edmund g. brown jr., attorney general susan durbin, state barno
TRANSCRIPT
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2.
EDMUND G. BROWN JR., Attorney General of the State of California
TOM GREENE, . ChiefAssistant Attorney General
THEODORA BERGER Senior Assistant Attorney General
SUSAN DURBIN, State BarNo. 81750 JAMIE JEFFERSON, State Bar No. 197142
Deputy Attorneys General 1300 I Street Sacramento, California 95814 Telephone: (916) 324-5475 Fax: (916) 327-2319
Attorneys for Petitioner
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN BERNARDINO
THE PEOPLE OF THE STATE OF CALIFORNIA, ex reI. ATTORNEY GENERAL EDMUND G. BROWN JR.,
Petitioner,
v.
COUNTY OF SAN BERNARDINO, SANBERNARDINO COUNTY BOARD OF SUPERVISORS
Respondents.
Case No.:
PETITION FOR WRIT OF MANDATE
(California Environmental Quality Act, Pub. Resources Code, §§ 21168,21168.5; Code of Civ. Proc. §§ 1085, 1094.5) ) l
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INTRODUCTION
1. Petitioner, the People of the State of California, ex reI. Attorney General
Edmund G. Brown Jr., ("People"), bring this action challenging the approval by
Respondents County of San Bernardino ("San Bernardino County") and its Board of
Supervisors ("Board") of the update of its General Plan. On March 13,2007, the Board
approved the General Plan update, and certified the Final Environmental Impact Report
("FEIR") on that update as adequate, in violation of the California Environmental Quality
Act ("CEQA"; Pub. Resources Code, § 21000 et seq .). Respondents failed to fully
evaluate and disclose the reasonably foreseeable effects of the General Plan update on
global warming, air quality, and other state resources, failed to consider and adopt
appropriate mitigation, and otherwise failed to comply with CEQA in the preparation and
certification of the FEIR.
2. The General Plan, as updated, will serve as the template for growth and
development in San Bernardino County for the next 25 years. San Bernardino County
has the largest land area of any county in the contiguous United States, and is larger than
the whole of many East Coast states. It is rapidly developing. The General Plan update
adopted by Respondents predicts, andpurports to accommodate, a 25% increase in the
County's population, from just under two million people to just over two and one-half
million, by the year 2030. The large size of the County, coupled with the rates at which
its residents drive, guarantee that increased population will bring major increases in
driving, and concomitant increases in emissions of air pollutants.
3. The General Plan also includes plans for residential and commercial
development without requiring the density, energy efficiency, and alternative energy
sources that could limit pollutant emissions, and will allow the replacement of forested
and vegetated land that currently sequester carbon with buildings, paving, and hardscape,
without requiring offsetting measures, including the planting of trees and vegetation, to
counter the global warming effects of development.
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4. The California Legislature has found that "[g]lobal warming poses a
serious threat to the economic well-being, public health, natural resources, and the
environment of California." (Health and Safety Code section 38501, subdivision (a).)
Among the dangers of global warming recognized by the Legislature are "a reduction in
the quality and supply of water to the state from the Sierra snowpack, a rise in sea levels
resulting in the displacement of thousands of coastal businesses and residences, damage
to marine ecosystems and the natural environment, and an increase in the incidences of
infectious diseases, asthma, and other human health-related problems." (Id.) Other
serious threats posed to California by global warming include damage to agriculture,
wine making, tourism, skiing, recreati.onal and commercial fishing, and forestry. (Health
and Safety Code section 38501, subdivision (b).) Taking a leading role in meeting the
threat posed by global warming, in 2006 the Legislature enacted, and Governor
Schwartzenegger signed into law, Assembly Bill 32 ("AB 32," codified at Health and
Safety Code section 38501, et seq.), a landmark law that requires the State to 1990 to
reduce its levels of greenhouse gas emissions to 1990 levels by 2020, a time well within
the 2030 planning horizon of the General Plan update.
5. CEQA requires that a public agency undertaking a project with the
potential to harm the environment must prepare an environmental impact report (EIR)
that uncovers, analyzes, and fully discloses the reasonably foreseeable effects on the
environment of the project, and adopts all feasible measures available to mitigate those
effects. Here, despite the enactment of AB 32, the FEIR on the General Plan update does
not disclose the effects of the General Plan update on emissions of greenhouse gases,
makes no attempt to quantify or even to estimate the current levels of greenhouse gas
emissions in the County, makes no attempt to quantify or even to estimate the increases
in greenhouse gas emissions that the full execution of the General Plan update will cause,
makes no attempt to analyze the effects of those increases on global warming or the
greenhouse gas emissions reductions required by AB 32, and neither adopts all feasible
mitigation measures (including those proposed to Respondents by the Attorney General
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and other commenters on the draft EIR) nor makes findings supported by substantial
evidence in the record that such mitigation measures are infeasible, all in violation of
CEQA.
6. As the FEIR acknowledges, San Bernardino County already has a critical
air pollution problem as to conventional air pollutants, with state air quality standards for
ozone having been exceeded on 91 days in 2002, and state air quality standards for fine
particulate matter having been exceeded on 82 days. The FEIR projects an increase in
driving and air pollutant emissions due to driving over the time period covered by the
General Plan update. However, the FEIR does not disclose or analyze the amount of
increase in emissions, or the distribution and concentration of the pollutants that this
increase will cause. Neither does itdisclose or adequately discuss the potential effects on
human health in general, and to children's lung capacity, asthma rates, adult rates ofheart
attack or cardiovascular damage in particular, of.these increases in pollutant emissions
and concentrations. Also absent from the FEIR is a full discussion of the effect of
increased air pollution on crop production, tourism (e.g., at mountain and desert park and
recreational areas), or other sectors of the economy that will suffer damage from the
increased driving and air pollution that the General Plan update will accommodate. The
FEIR also fails either to adopt all feasible mitigation measures, as presented to the
County in comments on the DEIR, or a demonstration, based on substantial evidence in
the record, that such mitigation is infeasible.
7. This is an action for injunctive relief under CEQA against the Respondents.
The People seek a writ ofmandate to vacate and set aside Respondents' approval of the
certification of the FEIR and adoption of the General Plan update, and a court order to
require Respondents to provide environmental review and mitigation in compliance with
CEQA prior to any re-adoption of the General Plan update.
PARTIES
8. Attorney General Edmund G. Brown Jr. is the chieflaw officer of the State
of California. He has broad independent powers under the California Constitution and
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the California Goyemment Code to participate in all legal matters in which the State is
interested, which include protecting California's environment and its natural resources.
(Cal. Const., art. V, § 13; Gov. Code, § 12511.) The California Legislature has given the
Attorney General a unique role to participate in actions concerning pollution and adverse
environmental effects which could affect the public or the natural resources of the State.
(Gov. Code, §§ 12600-12612.) Government Code section 12600 specifically provides:
"It is in the public interest to provide the people of the State of California through the .
Attorney General with adequate remedy to protect the natural resources of the State of
California from pollution, impairment, or destruction." Petitioner People of State of
California, ex reI. Attorney General Edmund G. Brown Jr., files this Petition for Writ of
Mandate pursuant to the Attorney General's independent power and duty to protect the
natural resources of the State from pollution, impairment, or destruction in furtherance of
the public interest. The natural resources contained within San Bernardino County, and
the climate of the State of California, are vital to the health and welfare of the People of
this State.
9. Respondent County of San Bernardino is duly organized and existing under
the Constitution and laws of the State of California, is a "public agency" and is the "lead
agency" for adoption and execution of the Project, as those terms are used in CEQA and
the CEQA guidelines. The CEQA Guidelines ("Guidelines"), found at California Code
of Regulations, title 14, section· 15000, et seq., are regulations interpreting and
implementing CEQA; they are binding on all state agencies, and are binding on
Respondents. (Guidelines, section 15000.)
10. Respondent Board of Supervisors of San Bernardino County ("Board") is
the governing body of San Bernardino County and is responsible for approval of land use
and development projects within the County's jurisdiction, and particularly for adoption
of its General Plan update. They are sued in their official capacity only.
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VENUE AND JURISDICTION
11. Pursuant to Public Resources Code sections 21168 and 21168.5, and Code
of Civil Procedure sections 1085 and 1094.5, this Court has jurisdiction to hear this
matter.
12. Venue is appropriate in this judicial district as the violations of CEQA .
occurred in San Bernardino County.
STATEMENT OF FACTS
13. Under California law (Govt. Code sections 65100, et seq.), every county is
required to have a general plan, which acts as "the constitution for growth" in that
county. (Da Vita v. County ofNapa (1995) 9 Ca1.4th 763.) The project at issue is an
update by Respondents to the San Bernardino County General Plan. The updated
General Plan adopts goals and policies that will direct the future ofland use, growth,and
transportation in San Bernardino County from the present until 2030.
14. San Bernardino County prepared and made publicly available, on
September 1,2006, its draft EIR for the General Plan update. The final EIR (FEIR) was
completed and made publicly available on February 6, 2007. Several public hearings·
were conducted on the draft EIR and FEIR, and on the project by the San Bernardino
County Planning Commission; workshops and public hearings were held by Respondent
Board of Supervisors. A public hearing on the FEIR was held on March 13,2007 by
Respondent Board of Supervisors at which the Board approved the General Plan update
and certified the FEIR.
15. San Bernardino County contains 20,106 square miles, and had
approximately 1,963,000 residents in January of2005Y By the planning horizon year of
2030, the County expects to have approximately 2, 560,000 residents, an increase of
nearly 600,000 persons during the 25-year planning horizon of the General Plan update.
The FEIR states that "[n]ew residential, commercial and industrial development will
1. quickfacts.census.gov/qfd/states/06/06071.html_.
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occur as a result of the update of the 2007 General Plan resulting [sic] in the creation of
more air pollutants that will impact the existing poor air quality in the county." (FEIR, p.
IV-29.)
16. Air pollution is already a critical problem in San Bernardino County, with
the state standards ozone and fine particulate matter having been exceeded on 91 days
and 82 days, respectively, in 2002. Failure to meet federal air quality standards can
subject the State to imposition of federal sanctions, such as cut-off of certain
transportation funds, or imposition of extremely stringent pollutant offset requirements
for the siting ofnew stationary sources of air pollution. (42 U.S.C. section 7410(m).)
Air pollutants are emitted from stationary sources such as industry, and from the driving
of cars, trucks and buses. The draft ErR reports that, currently, San Bernardino residents
make about 10.35 trips per day per household, totaling approximately 5.2 million person
trips per day, and that over 84 % of these ~ps taken by car. The Conservation
Background Report to the EIR states that residents in the southwestern portion of the
County, where 78% of the County's population resides, drive approximately 28 million
miles per day now, and the FEIR predicts a substantial increase in driving and a
concomitant increase in resulting air pollutants during the update's planning horizon.
However, the FEIR does not estimate the pollutant concentrations that will result from
the expected increase in driving, nor does it estimate the health damage that will be
produced by this increase in pollutant emissions.
17. The increases in driving, and in use of energy produced by combustion of
fossil fuels in the planned commercial, industrial, and residential development that will
occur as a result of adoption of the General Plan update will also increase emissions of
greenhouse gases such as carbon dioxide. The FEIR does not provide any information
whatever as to the amount of greenhouse gases currently emitted in San Bernardino
County, nor of the increase in these emissions that will result from the General Plan
update. Despite lengthy and detailed comments on this issue by the Attorney General
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and other commenters, the FEIR does not even identify global wanning and the emission
of greenhouse gases as an issue of public controversy.
18. The FEIR contains some measures that purport to mitigate the impact of
increased air pollutant emissions. However, many of the measures specified in the FEIR
to mitigate the effects of the General Plan update on air quality should be viewed as
components of the project itself, and not mitigation, since they consist of legally binding
measures currently required by other agencies' regulations. These include a requirement
that the County replace vehicles in its fleets with the cleanest vehicles commercially
available that meet perfonnance criteria for their intended use, and a requirement that
new buildings use paints and coatings that minimize air pollutant emissions.
19. Other measures purporting to reduce future air pollutant emissions consist of
vague, unenforceable policies such as "encourage the reduction of automobile usage
through various incentive programs," and measures whose method of execution and
funding is not stated and is very uncertain, such as "extend public transit between
residential areas and industrial/urban employment centers,"are not supported by
commitments to their funding or implementation. While Petitioner recognizes the
programmatic nature of the FEIR, many mitigation measures seem to be of a "blue sky"
nature, unsupported by any evidence in the record that they can be completed or
enforced.
20. The draft EIR proposed no measures that to specifically reduce greenhouse
gas emissions. After the County received comments on the draft EIR pointing out its
lack of analysis of global wanning and lack ofmitigation measures to address global
wanning, the County added a short discussion of global wanning to the FEIR. However,
the FEIR contains no inventory of the current, baseline greenhouse gas emissions in the
County, no estimate of the increase in greenhouse gas emissions that will result from the
General Plan update, and no analysis of the effects of these increases on the reductions in
greenhouse gas emissions mandated by AB 32.
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21. Petitioner Attorney General submitted lengthy written comments on the
inadequacy of the draft EIR, pointing out its failure to address global warming in any
way, and its failure to make adequate disclosure of the effects on air quality and public
health of the General Plan update, and to adopt all feasible mitigation measures to reduce
emissions of conventional air pollutants, diesel particulate matter, and greenhouse gases.
All of these comments were made prior to the close of the comment period on the draft
EIR, and are part of the administrative record connected with the approval of the General
Plan.
22. On or about February 6, 2007, San Bernardino County released the FEIR,
consisting of the draft EIR, the comments on the draft, and the responses to those
comments.
23. At a public hearing on March 13,2007, Respondent Board of Supervisors
held a public hearing on the project and FEIR considered the project and the FEIR,
received public comments, and by resolution took final action to approve the General
Plan update, to adopt Findings and a Statement of Overriding Considerations, and to
certify the FEIR as adequate under CEQA.
24. On March 14,2007, Respondent County filed a Notice of Determination
that Respondent Board of Supervisors had certified the FEIR as adequate under CEQA.
STATUTORY AND REGULATORY REQUIREMENTS
25. CEQA requires the preparation of an EIR in order to identify the
significant effects on the environment of a project, so that measures to mitigate or avoid
those effects, or alternatives that avoid those effects, can be devised. (Pub. Resources
Code, §§ 21002.1(a), 21060.) Compliance with the procedural requirements of CEQA
sets the stage for development ofmitigation measures and alternatives.· Without a proper
procedural foundation, a local agency cannot comply with CEQA's mandate that public
agencies should not approve projects as proposed if there are feasible alternatives or
feasible mitigation measures available which would substantially lessen the significant
environmental effects of such projects. (Pub. Resources Code, § 21002.)
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26. CEQA's fundamental goals are to foster informed decision making and to
fully inform the public about the project and its impacts. (Cal. Code Regs., title 14, §
15003.)
27. An environmental impact report must provide public agencies and the
public in general with detailed information about the effect that a project is likely to have
on the environment, to list ways in which the significant effects of a project might be
minimized, and to indicate alternatives to such a project. (Pub. Resources Code, §
21061.) California Code of Regulations, title 14, section 15126.2, requires that the FEIR
identify the significant environmental impacts of the project, including direct and indirect
impacts. California Code of Regulations, title 14, section 15126.4, requires that the
FEIR describe all feasible measures that can minimize significant adverse impacts of the
project. CEQA does not allow an agency to defer analysis of impacts and mitigation
measures to another agency which may subsequently approve an aspect of the project.
(Cal. Code Regs., title 14, § 15126.4, subd. (a)(I)(B).)
CAUSE OF ACTION FOR FAILURE TO COMPLY WITH CEQA AND FOR PREJUDICIAL ABUSE OF DISCRETION
·28. The allegations in paragraphs 1 through 27 are realleged and incorporated
by reference herein as though set forth in full.
29. Respondents' actions in certifying the FEIR as fully complying with CEQA
constituted a prejudicial abuse of discretion, in that Respondents did not proceed in the
manner required by CEQA, and substantial evidence does not support their Findings, as
set forth below.
30. The FEIR fails to adequately analyze the reasonably foreseeable adverse
effects of the General Plan update on air quality, in that the increase in emissions of
diesel particulate exhaust reasonably expected to result from implementation of the
General Plan update is not adequately disclosed, the actual increases in ambient
concentrations of ozone, coarse and fine particulate matter, and diesel particulate matter
reasonably expected to result from implementation of the General Plan update are not
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adequately disclosed, and the public health effects expected from exposure to these
increased pollutant emissions are not adequately disclosed. The FEIR fails to adequately
analyze the actual effects of air pollutant emissions that the growth planned for and
enabled by the General Plan update, and from the increased driving, construction, and
operational emissions that will come from that growth, on local and regional air quality,
or on regional efforts to meet federal air quality standards required to be met under
applicable federal law. Instead of disclosure and analysis regarding whether expected air
emissions from the projects will result in significant impacts on air quality and human
health, the FEIR improperly substitutes a conclusory finding of significance.
31. The FEIR fails to adequately analyze the reasonably foreseeable adverse
effects of the General Plan update on global warming, and on the implementation of AB
32, in that the increase in emissions of greenhouse gases reasonably expected to result
from implementation of the General Plan update is not adequately disclosed, and no
comparison is made between the increases in greenhouse gas emissions that are
reasonably expected to result from implementation of the General Plan update and the
reductions in greenhouse gas emissions mandated by AB 32.
32. The FEIR fails to identify and adopt all feasible mitigation measures,
including those suggested by the Attorney General and other commenters on the draft
EIR and FEIR,·to minimize the adverse effects on global warming, implementation of
AB 32, and air quality that will result from the General Plan update.
33. The FEIR fails to respond adequately to comments by the Attorney General
and others on air quality and greenhouse gas emissions/global warming. In particular,
the responses failed ad,equately to address the statutory mandate of AB 32, Health and
Safety Code section 38501, et seq.
34. Respondents abused their discretion and failed to act in the manner
prescribed by law in that the Findings adopted by Respondent Board of Supervisors do
not address the effects of the General Plan on greenhouse gas emissions or global
warming, including cumulative effects on greenhouse gas emissions and global warming,
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and neither adopt all feasible mitigation measures for damage, including cumulative
damage, to air quality or to greenhouse gas emissions and global warming, nor make
findings supported by substantial evidence in the record that such mitigation measures
are not feasible.
35. Respondents abused their discretion and failed to act in the manner
prescribed by law in that the Statement of Overriding Considerations does not comply
with CEQA's mandate that agencies not approve projects that will have significant
adverse effects on the environment unless all feasible mitigation measures are
incorporated in the project and the agency makes well supported findings that overriding
considerations outbalance the environmental harm a project will do. Here, Respondents
did not acknowledge all adverse environmental harms the General Plan update will do,
and therefore could not and did not perform a legally adequate balancing of the benefits
of the General Plan update against its adverse environmental effects. Specifically,
Respondents did not acknowledge the adverse effects of the General Plan update on
greenhouse gas emissions and global warming.
36. Unless restrained by the Court, Respondents will act upon and carry out the
General Plan update without complying with the requirements of CEQA. If construction
proceeds without compliance with this law, the People will suffer great and irreparable
harm. The People have no plain, adequate and speedy remedy at law.
37. Section 21177 of the Public Resources Code is not applicable to the .
Attorney General.
38. The People have complied with the requirements of Public Resources Code
section 21167.5. A copy of the written notice provided to San Bernardino County and a
proof of service, as required by that provision, is attached hereto as Exhibit"A".
39. Respondents' actions in approving the FEIR and the General Plan update,
without adequately analyzing all reasonable alternatives that would lessen its adverse
effects on the environment, are arbitrary and capricious, without evidentiary support, a
prejudicial abuse of discretion, and are not in accordance with law.
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40. This petition is excused from verification pursuant to Code of Civil Procedure
section 446, subdivision (a).
PRAYER FOR RELIEF
WHEREFORE, Petitioner respectfully requests the following relief:
1. A peremptory writ ofmandate commanding that:
a. Respondents vacate and set aside its approval of the FEIR for the
General Plan update, the approval of mitigation measures for the
General Plan update, the approval of a Mitigation Reporting or
Monitoring Plan for the General Plan update, the approval of a
Statement of Overriding Considerations for the General Plan update,
the Findings for the General Plan update, and the approval of the
General Plan update;
b. Respondents withdraw the Notice of Determination thereof;
c. Respondents prepare and circulate a revised FEIR for public review
and comment that is in compliance with the requirements of CEQA;
and
d. Respondents suspend all activity pursuant to the certification of the
FEIR and its approval of the General Plan update that could result in
any change or alteration to the physical environment until
Respondents have taken all actions necessary to comply with
CEQA.
2. .Preliminary and permanent injunctions restraining Respondents, their
agents, employees, contractors, consultants and all person acting in concert with them,
from undertaking any construction or development, issuing any approvals or permits, or
taking any other action to implement in any way the approval of the General Plan update
without full compliance with California law;
3. A declaration of the rights and duties of the parties hereto, including but
not limited to a declaratory judgment that prior to undertaking any action to carry out any
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aspect of the General Plan update, Respondents must prepare, circulate, and adopt a
revised FEIR in accordance with the requirements of CEQA;
4. Petitioner's costs of suit; and
5. Such other relief as the Court deems just and proper.
Dated: April 13, 2007
Respectfully Submitted,
EDMUND G. BROWN JR., Attorney General of the State of California
TOM GREENE Chief Assistant Attorney General
THEODORA BERGER Senior Assistant Attorneys General
SUSAN DURBIN JAMIE JEFFERSON
~;fuo/~s~ SUSAN DURBIN Deputy Attorney General
Attorneys for Petitioners
13 Petition for Writ of Mandate
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PROOF OF SERVICE
STATE OF CALIFORNIA, COUNTY OF SACRAMENTO
I am employed in the County of Sacramento, California. I am over the age of 18 and not a party to the foregoing action. My business address is 1300 I Street, Sacramento, CA. 95814.
On April 11, 2007, I served a true and correct copy of the NOTICE OF COMMENCEMENT OF CEQA ACTION on Respondent San Bernardino County and San Bernardino County Board of Supervisors in this action as follows:
[] BY MAIL Such envelope was sealed and placed for collection and mailing following ordinary business practices addressed to:
[] BY PERSONAL SERVICE by personally delivering such envelope by hand to the offices of the addressee(s).
[ ] BY OVERNIGHT DELIVERY SERVICE via Express Mail to the offices of the addressee(s). In accordance with Code of Civil Procedure § 1013(c) as follows: I am readily familiar with this firm's practice of collection and processing correspondence for mailing with the Express Mail. Under that practice the correspondence would be deposited with Express Mail on that same day in the ordinary course of business with postage thereon fully prepaid at Los Angeles, California. Such envelope was sealed and placed for collection and mailing following ordinary business practices addressed to:
Ruth E. Stringer, County Counsel San Bernardino County 385 N. Arrowhead Avenue, 4th Floor Dena Smith, Clerk of the Board· San Bernardino, CA 92415-0140 Clerk of the Board of Supervisors
San Bernardino County Board of Robin Cochran, Deputy County Counsel .Supervisors Office of the County Counsel, 385 N. Arrowhead Avenue, 2nd Floor 385 North Arrowhead Avenue, 4th Floor San Bernardino, CA 92415-0130 San Bernardino, CA 92415-0140
[X] BY FACSIMILE. A true copy thereof was transmitted by facsimile and the transmission reported complete and without error.
'fA ~~.J ,~
Executed on April 11, 2007 in Sacramento, California.
[X] STATE I declare under penalty of perjury under the law of California that the
foregoing is true and correct. l(ft~
/'
Notice of Commencement of CEQA Action
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S. Claiborne Type or Print Name
~
Signature